CCW Weekend: Ninth Circuit Rules Open Carry Is Protected

Until recently, the prevailing opinion about the Ninth Circuit Court of Appeals is that they generally side with gun control, especially regarding the Peruta v. San Diego decision. As a brief refresher, the court held in an en banc decision that concealed carry was not an absolute Second Amendment right.

However, the Ninth Circuit has just handed down a new ruling holding that open carry is a protected Second Amendment right in one of its most recent decisions, namely George Young v. State of Hawaii. You can see it here in its unbridled glory, in PDF format.

George Young had applied for a permit to openly carry twice and was rejected both times. He sued the state of Hawaii, claiming his Second Amendment rights were being infringed upon. His contention was that since the state won’t issue a permit, he was being barred from the exercise of his rights. The state of Hawaii bars citizens from open carry, reserving it only for police and armed security guards, according to Reason.

The state of Hawaii is notoriously ham-fisted about permits to carry. None have been issued by that state since at least 2015.

The plaintiff in Peruta v. San Diego contended the same when denied a concealed carry permit, though Young was applying for an open carry permit, which is a key distinction. The Ninth Circuit – oddly enough, citing Peruta – ruled that the Constitution does establish a right to carry a gun in public spaces.

This is where things get a little nutty. The court found that the Second Amendment does confer the right to carry a gun in public, but doesn’t say HOW. Since Peruta holds that concealed carry itself wasn’t necessarily protected, open carry therefore is.

The modern consensus is that concealment is more or less preferable to open carry (more people concealed carry than open carry) but the decision is somewhat in line with historical precedent. You see, open carry was the norm for most of American history. The first gun control laws – save those prohibiting gunfire in city limits – were anti-concealed carry laws.

The worm turned in the early 20th century as a number of states passed laws similar to New York’s Sullivan Act, requiring a permit to carry a gun in public and issuing them on a may-issue basis. Other states elected for no-issue policies. A few early adopters of shall-issue permits emerged, as New Hampshire and Washington state had shall-issue laws by the 1960s and Connecticut’s hybrid system – nominally may-issue but closer to shall-issue in function – emerged by that time as well. However, the majority of states converted to shall-issue laws in the last quarter of the 20th century.

Vermont, of course, has ever required a permit at all.

No suit concerning concealed carry has gone before the Supreme Court, at least yet. Peruta was denied cert, and the other recent court case that would have touched on the matter – 2012’s Moore v. Madigan from the Seventh Circuit Court of Appeals – was rendered moot by the Illinois state legislature.

In that case, the Seventh Circuit ruled that Illinois had infringed on the Second Amendment rights of Michael Moore – a private citizen, not the “documentary” filmmaker – by not issuing carry permits, as Illinois was no-issue at the time. Around the time of the ruling, then-Governor Pat Quinn vetoed shall-issue legislation. However, the state legislature overturned his veto and enacted that state’s shall-issue law. Quinn was unseated in the following election.

So…what does this mean?

For the moment, Young v. Hawaii is headed back to district court. The decision was made by a panel, and may return for an en banc hearing. The appellate court has a two-step process, first hearing cases in a 3-person panel then by all judges (en banc) before it can be submitted for a writ of certiorari.

Some SCOTUS justices have expressed interest in hearing a carry permit case. Justices Thomas and Gorsuch dissented in the denial of cert of Peruta according to the ABA Journal, with Thomas holding the framers did not only envision “carrying from the bedroom to the kitchen.” One of these days, perhaps one will reach them.